Citation Nr: 1126841 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 06-27 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for the residuals of shell fragment wounds (SFWs) of the left lower leg, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for the residuals of SFWs of the left thigh, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for the residuals of SFWs of the right lower leg, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active military service from October 1964 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by the No. Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2009, the Veteran testified before the undersigned Veterans Law Judge at Travel Board hearing held at the No. Little Rock RO. The hearing transcript is associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board regrets any further delay in adjudicating the increased rating claims, but must find that a more thorough and descriptive VA examination is necessary to evaluate the Veteran's SFW residuals. Historically, the available service treatment records (STRs) reflect that the Veteran incurred SFWs to the left calf muscle which was described as follows: Division of calf muscles, left leg. This will cause marked disability for life in vigorous use (e.g. running or stooping) of left leg. The STRs and February 1967 VA Compensation and Pension (C&P) examination report also described an SFW injury to the right lower extremity manifested by 2 oval 11/2 centimeter exit and entrance wound scars located at the level of the middle, lateral one third of leg. The SFW to the left thigh was manifested by a scar 51/2 inches in length and 3 inches in width at its widest area. The RO has assigned the maximum available schedular rating for severe injury to Muscle Group (MG) XI (left calf muscle) under Diagnostic Code (DC) 5311, a 10 percent rating for moderate injury to MG XIII (left hamstring) under DC 5313 and a 10 percent rating for moderate injury to MG X (muscles of the feet) under DC 5310. On review of the entirety of the record, it is unclear as to whether the assigned disability ratings cover all aspects of disability claimed by the Veteran. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.) For example, the Veteran has provided a complaint of numbness and tingling sensation to both lower extremities which he relates as an SFW residual. A February 1967 VA C&P examination report noted the Veteran to experience hyperesthesia of the medial aspect of the left foot extending into the medial aspect of the great toe. Otherwise, the record does not disclose any further evaluation for a potential nerve injury. In light of the Veteran's recent testimony, the Veteran should be afforded additional examination to determine whether he manifests a nerve injury resulting from the SFW injuries (if any). The Board further notes that the Veteran's SFW injury to the right lower extremity has not been evaluated in many years, in part, due to the Veteran's denial of an SFW injury to the right leg on VA C&P examination in September 2005. The lack of current findings poses an impediment to adjudicating the current nature and severity of this SFW injury overall. Simply stated, if the Veteran does not have a SFW injury to the right leg, he should withdraw this claim immediately so that the Board may focus on the left lower extremity problem (or he should explain the discrepancy). With respect to this SFW injury, the Board also requires clarification as to the muscle group or muscle groups involved. The RO has evaluated an injury to MG X which involves the muscles of the feet while the SFW entrance and exit scars are described as being located at the level of the middle, lateral one third of leg. Furthermore, the record reflects a history of the left calf SFW interfering with joint motion involving the left ankle. For example, the February 1967 VA C&P examination report describes a muscle mass having a globular effect on left ankle motion. The current evaluations being ordered must take into account the historical record of injury and disability. In remanding this case, the Board is cognizant of the RO's August 2009 rating decision which denied claims of entitlement to service connection for bilateral ankle disability, bilateral knee disability and nerve damage of the lower extremities. At this time, the Board finds that the medical evaluations of record do not fully describe the nature and severity of the Veteran's GFW residuals. To the extent these issues overlap, the Board must defer to the current claim requirements of a fully descriptive VA examination report regarding all SFW residuals. Accordingly, the case is REMANDED for the following: 1. Assist the Veteran in associating with the claims folder any evaluations of his SFW injuries at "Fort McKintly." The Veteran himself should attempt to obtain these records (or indicate that they are not obtainable) in order to expedite the claim. 2. Upon receipt of any additional evidence, arrange for the Veteran to be evaluated by the appropriate physician(s) to determine the nature, extent, and severity of the service-connected SFWs to the left calf, the left thigh and the right lower extremity. The claims folder must be made available to the examiner for review. The examiner must review the history of injury in the STRs and report of symptomatology during the February 1967 VA C&P examination. Following any necessary tests, the examiner(s) should specifically provide the following clinical findings: a) for the SFW to the left calf, the left thigh and the right lower extremity, record a complete history of the nature of the sustained wound and extent of injury, to include the location of entrance and exit wounds, presence (or absence) of retained foreign bodies and whether the missile injury was a deep penetrating wound involving muscle tissue; b) specify the degree of injury to all muscle groups involved, to include whether there is more than one muscle group involved in the same anatomical region, and what functional abilities are affected; in evaluating the SFW to the left calf, describe the extent of impairment, if any, of the adjoining joints when taking into account the 1967 assessment of a muscle mass having a globular effect above the Achilles tendon with limitation of ankle motion; c) identify the etiology of any neurological manifestations, as well as the degree of injury involved, and any functional impairment that results, including the February 1967 VA C&P finding of hyperesthesia of the medial aspect of the left foot extending into the medial aspect of the great toe; d) comment as to whether the disability associated with each affected muscle group would be considered moderate, moderately severe, or severe, to include commenting on the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement; and e) measure each scar and further provide findings pertaining to the presence or absence of soft tissue damage, frequent loss of covering of skin over the scar(s), pain on examination, and whether such scar(s) result in limitation of motion of the part affected. 3. Thereafter, the RO should readjudicate the claims. The RO should separately evaluate all residual scarring and muscle injury involving the service-connected SFWs of the left calf, the left thigh and the right lower extremity. If any of these claims remains denied, the Veteran and his representative should be furnished an appropriate SSOC and afforded the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).